Jenner v Jenner
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 1860 |
| Date | 17 November 1860 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 660
BEFORE THE LORD CHANCELLOR LORD CAMPBELL.
S. C. 2 Giff. 232; 30 L. J. Ch. 201; 6 Jur. (N. S.), 1314; 3 L. T. 488; 9 W. R. 109. See Hoblyn v. Hoblyn, 1889, 41 Ch. D. 207.
[359] jenner v. jenner. Before the Lord Chancellor Lord Campbell. Nov. 5, 6, 7, 17, 1860. [S. C. 2 Giff. 232 ; 30 L. J. Ch. 201 ; 6 Jur. (N. S.), 1314; 3 L. T. 488; 9 W. R. 109. See Hoblyn v. Hoblyn, 1889, 41 Ch. D. 207.] A re-settlement, executed by a tenant for life and his son, who was tenant in tail in remainder, had been prepared by the father's solicitor, and the son had not had the advantage of independent professional advice, but it appeared that the son was well acquainted with and had been advised respecting the provisions of the deeds of re-settlement before they were executed by him, and that the transaction was a reasonable one and for the good of the family, and not upon the whole for the personal benefit of the father. Held, not a case for setting aside or altering the deed. This was an appeal from the decree of the Vice-Chancellor Stuart dismissing with costs the Plaintiffs bill, praying the rectification of a re-settlement of family estates, so far as it gave him an estate for life only, instead of an estate tail. The following is a summary of the facts of the case, which are fully set forth in the report of the hearing below in Mr. Giffard's Reports (vol. 2, p. 232). By indentures of settlement dated in August 1824 and made on the occasion of the marriage of Robert Francis Jenner and Elizabeth Lascelles Jenner, the Wenvoe estate in Glamorganshire, and other hereditaments and premises situate in Glamorganshire and Yorkshire, were limited to the use of Robert Francis Lascelles, for life, with remainder to the use of his first and other sons in tail male, with remainders over. By the same indentures the settled estates were charged with a jointure of £1000 in favour of Elizabeth Lascelles Jenner, and power was reserved to Robert Francis Jenner to raise the jointure to £1500 a year, and to charge the settled estates with portions for the younger children of the marriage to an amount not exceeding .£20,000. Powers to the game extent of jointuring any future wife, and of raising portions for the children of a future marriage, were also reserved to Robert Francis Jenner, and he was further empowered to raise by charge upon the premises sums of money for his own purposes to the extent of £20,000. [360] Robert Francis Lascelles Jenner, the eldest child of the marriage, and first tenant in tail of the settled premises, was born on the 16th of September 1826, and attained his majority on the 16th September 1847. By various deeds executed between the date of the above-mentioned indentures of settlement and the year 1850, Robert Francis Jenner exhausted his power of charging the settled estates with £20,000 for his own purposes. In 1850, at which date there were thirteen children of the marriage living, Robert Francis Jenner became desirous of raising further sums of money, and being unable to do so upon the security only of his life interest in the settled estates, he applied to his son Robert Francis Lascelles Jenner to assist him by barring the entail for the purpose of letting in a charge upon the inheritance in priority to the estate tail of the son for a sum riot exceeding £15,000. The son assented to this proposal, and with the father joined in executing two deeds dated respectively the 10th and llth January 1850. By the former of these, the entail of the settled estates created by the indentures of August 1824 was 1DEQ. F.fcJ.Ml. JENNER V. JENNER 661 barred, and by the second the same estates were subject to certain specified charges, re-limited to Bobert Francis Jenner for life, with remainder to his son Robert Francis Lascellea Jenner for life, with remainder after the decease of the survivor to the first and other sons of Robert Francis Lascelles Jenner successively in tail male, and, in default of such issue, to such person or persons as Robert Francis Lascelles Jentier should appoint, with divers remainders over ia default of appointment, and an ultimate remainder to Bobert Francis Lascelles Jenner in fee. By this indenture the power given to Robert Fiancis Jenner by the settlement of [361] 1824, of increasing the jointure of hia wife, Frances Lascelles Jenner, from £1000 to £1500 a year, and his power of raising portions for the children of a future wife, were extinguished, and the power of jointuring any after-taken wife was reduced from £1500 to £700 a year. The indenture of re-settlement then reserved a power to Robert Francis Jenner and his son Robert Francis Lascelles Jenner to raise any sum not exceeding £15,000 for their own use and benefit, and a power to the son Robert Francis Lascelles Jenner, in case he should survive his father, to charge the estates to the extent of £15,000. The son was likewise empowered to charge the estates thereby settled with a jointure of £700 a year, in favour of any wife he might marry, and with portions for younger children, to an amount not exceeding £10,000. Elizabeth Lascelles Jenner died in September 1850. The bill was filed by R. F. L. Jenner against his father R. F. Jenner, the trustees of the settlement of 1850, and the various persons claiming beneficially either by way of charge or otherwise under it, alleging that the re-settlement of 1850 was executed in performance of an arrangement previously agreed upon by the Plaintiff and hia father, to the effect that the entail in the estates comprised in the indenture of 9th August 1824 was to be opened; that a charge not exceeding £15,000 was to be let in; and that, subject thereto, the estates were to continue or remain limited in the same manner, as respected the Plaintiff and his father, as settled by the indenture of August 1824 ; and that the father should give up his power of increasing the jointure to hia then wife; should limit his power of jointuring any future wife to £700 a year, and should give up his power of charging portions for the children of a subsequent mar-[362]-riage respectively reserved to him in that settlement. The bill then stated that the two deeds of January 1850 were, at the suggestion of the father, prepared by Mr. Warter, the father's solicitor; that no explanation was given to the Plaintiff, previously to his executing those deeds, by his father or by any othjer person, of the Plaintiff's true position with reference to the estates comprised in the settlement or the rental thereof or the incumbrances thereon ; that the deeds were not, nor were any drafts or abstracts thereof, read over by the Plaintiff or by any person to him (except the parts relating to letting in the charge of £15,000,. and restricting the powers of the Defendant R. F. Jenner), nor was the effect of the deeds explained to the Plaintiff; that the Plaintiff executed them under the full belief that their provisions were in all respects in conformity with the terms of the arrangement previously come to between him and his father; and that he did not become aware of the contrary till 1858. The bill prayed that the deeds of January 1850, save so far as the same restored the life-estate of the Defendant R. F, Jenner in the estates comprised therein, and enabled the Plaintiff and the Defendant R. F. Jenner to charge the estates with a sum not exceeding £15,000, and modified or restricted the powers of jointuring and charging with portions for younger children, respectively reserved to the Defendant R. F. Jenner by the settlement of August 1824, was void, and not binding on the Plaintiff; and that the indenture of the llth January 1850, save so far as aforesaid, and gave so far as the same was not inconsistent with the arrangement entered inta between the Plaintiff and the Defendant H. F. Jenner, might be set aside or rectified or varied, or might be rectified in such other manner as the Court should think fit. The Defendant R. F. Jenner and the trustees of the [363] deed of the llth January 1850, by their answers, denied the truth of these statements of. the Plaintiff's bill and stated that it was expressly made part of the arrangement entered into by the Plaintiff and hia father, and which was carried into effect by the deeds of January I860, that the estates comprised in the indentures of August 1824 should be re-settled by limiting to the Plaintiff the same estate which his father 662 JENNER V. JENNER IDE 0. F. & J. SM. had taken under the prior settlement of August 1824; and that the Plaintiff and his father instructed Mr. Warter to prepare such deeds as he might think best calculated to carrying into effect the terms of the arrangement so agreed upon. From the evidence in the cause, it appeared that in 1850, 1851, 1852 and 1854, the Plaintiff had executed various deeds by which the whole sum of £15,000 had been raised under the joint power given to the father and son, and that out of the last of the instalments so raised, amounting to £4500, £1000 had been paid to the Plaintiff. In all these deeds, some of which were executed by the Plaintiff while at a distance from his father, the fact that the Plaintiff was only tenant for life in remainder of the premises comprised in the settlement of the llth January 1850 was recited. The remainder of the evidence adduced on the part both of the Plaintiff and Defendant is fully described in his Lordship's judgment. In the interval between the hearing below and the appeal, the Defendant R. F. Jenner died. Mr. Eolt and Mr. Nalder, for the Plaintiff. The sole object of the Plaintiff and his father in opening the entail of 1824 was to raise money. Without imputing fraud to any of the parties concerned or [364] employed in the transaction in question, it certainly does not appear that the difference between an estate tail and estate for life was explained to either of the parties prior to the re-settlement of 1850. The Plaintiff's...
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